Proving a Parent Unfit

Proving a Parent Unfit

A custody battle can be the most difficult and emotionally trying part of a divorce. Traditionally, proving one parent to be unfit to care for children has been the most decisive factor in a judge’s final decision. Judges know that the best home for a child is one in which they will be most cared for. Parents are often unwilling to seek divorce out of fear of losing a child, either because they feel that they cannot prove their spouse is unfit, or because the spouse has threatened them with the same accusation.

Signs of an Unfit Parent

Although it can be difficult to produce concrete evidence that a parent is unfit, there are some actions and characteristics that are almost certainly considered sufficient if they can be proven. An unfit parent:

Abuses drugs or alcohol

Was previously convicted of a sexual offense

Has a past of domestic violence

Has physically, mentally, or emotionally abused the child

Has exposed the child to abuse (by a stepparent, sibling, grandparent, etc.)

If you can produce evidence that your spouse fits any of the descriptions above, your chances of establishing that he or she is an unfit parent are significantly higher. If you do not fit any of those descriptions, you most likely do not have to worry about being declared unfit yourself.

Contact Us

If you or someone you love is considering divorce and anticipating a difficult custody battle, the experienced Oceanside custody lawyers at Fischer & Van Thiel, LLP, are here to help. Contact us today by calling 760-722-7646.

Mike's Top FAQs About Child Custody

Question Detail

I do not know why she is doing this, she is telling the police that I was molesting our son. She took him to the doctor to have him checked out. He is four years old. I did not do anything.

Answer

These are very serious allegations that your wife is making. I would not make any statements to the police unless you have an attorney present. Even if you have not molested your son, the allegations will be taken seriously. Typically, Child Protective Services will be involved and will conduct an investigation to see if the molestation allegations are founded or not. If CPS has reason to believe that the child is being molested, he will be removed from the home. If not, you might want to consider filing charges against your wife for making malicious allegations against you. I would contact a criminal defense attorney to help you with your case and do not willingly talk to the police unless you have an attorney present.

Question Detail

When parents are divorced and have equal and joint custody of their child, does a child need both parents approval in order to go away to something like a private school or college prep school? It is a boarding school scenario. If the child does need the approval of both parents, then can the child appeal to a judge? Will the child need to hire a lawyer? What can be done? (The child in question is nearly 16 years old and wishes to spend their last two years of high school at an advanced private school, but one parent will not agree to let the child go.)

Answer

In a situation like this, you can request an order from the Court allowing your child to attend the school. You would file what is called an order to show cause and get a hearing date. You will want to present evidence as to why going away to school is in the child’s best interests. The other parent would have to submit evidence as to why it is not in the child’s best interest. The judge will be able to grant the order for the child to move away.

Is the opinion of the child ever taken into consideration in a divorce?

Question Detail

Is the opinion of the child ever taken into consideration in a divorce? If so, at what age to the court actually take that opinion into consideration? Thank you in advance.

Answer

Depending on a variety of factors, including the age of the child, the court has the ability to consider a child’s opinion in custody matters. Often times, the Family Court Services counselor will speak to the child before preparing the written custody and visitation recommendations. The information ascertained from this meeting could impact the recommendations provided by the counselor. While there is no absolute age a child must be for the court to consider their imput, they must have the mental capacity and maturity level to form a reasonable opinion regarding their preference.

Question Detail

My niece’s husband left her and isn’t paying her any support. She doesn’t have money because she has three children and no job. What can she do?

Answer

In addition to filing for dissolution, she can file a motion with the court requesting child and spousal support. If she is unable to afford the services of an attorney, she can contact her local Department of Child Support Services (DCSS) for assistance. Also, Family Law Facilitator offices located in many courthouses can assist her in preparing the necessary documents to request support.

Question Detail

Two years ago I was at my now ex’s house with my two children when a raid took place for marijuana. I was clueless to the fact that he was growing marijuana in the garage. CPS was called and kids were taken. It has been a hopeless battle for me with false hope after me doing everything and more than was told to do I went to a very strict four days a week drug program, was drug tested three times a week, rehab, eventually rented my own apartment. I jumped through all the hoops. The father was asked to attend parenting classes and was granted full physical custody. We both share joint custody and I see my son four days out of the month and he controls everything and threatens that he doesn’t have to let me see him at all. I have not had a fair chance at all. I need help, even my criminal charges are the same as what he was charged with and I was just a guest that stayed the night at his residence.

Answer

If you have completed your rehabilitation program, are currently sober and have been keeping up with your court ordered visitation time, you will want to file a motion to modify the current custody and visitation order. Given the complexities of your case, it would probably be in your best interest to consult with an attorney.